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The Future of Social Media: Chose Your Fiction

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My sabbatical from blogging this year was quite busy (unfortunately, vacations from blogging usually result from too much activity, rather than a desire to “get away from it all”).   Specifically, I found myself at three different trials (ranging in subject matter from girl’s dolls to rivet cassettes).  It has been a hectic year, indeed, for IP and advertising attorneys.

But in addition to my normal activities as a lawyer (as though that were not enough!), I have spent my spare time over the past several years writing a novel.  All lawyers, as you may be aware, are required at some point in their career to write a novel.   Or at least threaten to write one.   To the relief of my family, mine is done (it is called The Secret Root, and trust me, you’ll be hearing all about it later on….)

But in any event, in the course of writing this novel I have been forced to act like a futurist, imagining what the world would be like 25 years from now, and then 25 years after that.  How would our interactions be sculpted by social media in the years to come.  Would Facebook (now with a $100 billion valuation) still be a player 25 years from now?  What about Google, or Twitter or any number of other significant brands that shape our world today?  How would we live our lives?

Recent books have tried to tackle this subject with a variety of different conclusions.  The acclaimed Super Sad True Love Story imagines a media saturated world where the lowest common denominator renders us helpless, pathetic wretches in thrall to pointless and worthless technology.  Neal Stephenson’s bestseller REAMDEsuggests that the videogames of today will morph into the new economy of tomorrow — that world-building for fun and world-building for profit are largely the same, and that as our ability to interact with electronic worlds improves we will begin to substitute our “real” life for a simulation.  Other works imagine transhumanism, dystopia and crime.

But while speculation is fun, it is also important.  The rules we set today will inevitably shape the technologies we get 20 years from now, and the attitudes we adopt will direct our actions.   It really will matter whether Protect IP and/or the Stop Online Piracy Act are passed into law — whether you support them or not.  It really will matter whether cybercrimecontinues to be a focus of law enforcement.  Will geolocation and couponing and rebates and environmental marketing all merge into some amorphous repository of your personally identifiable information?

Actually, my suspicion is exactly that — as advertising becomes more sophisticated, and consumer marketing is fed more data, more and more things will be free in exchange for data about you.  More and more marketing practices will be focused on customization and personalization, and more of that will be tied to your online persona.  While we have a few years before you live your life as an avatar, you only need look at how 12 year-0lds communicate today to realize that in-person interaction is diminishing rapidly as an attractive choice for the next generation.   As massive as Facebook may be today, the potential for synthetic currencies (the logical end-point for Facebook Credits and Linden Dollars, and other “payment systems” that are simply stalking horses for “real money”) and synthetic identities bodes well for the future of social media — even if it will also make it a far more slippery place.

When I look back at where technology was in the early 1990s, and how far it has come in the two short decades that have intervened, I cannot help but think that we are grossly underestimating how much we have changed, and how much we will change once again.  Like the hipster narrator of an LCD Soundsystem song, we were there when things began to change, but we will soon be left behind by “the kids” and things that we cannot even imagine today.


Promotion Marketing Association Law Conference – Live Tweeting

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As interesting things arise during this year’s PMA Marketing Law Conference in Chicago (held today and tomorrow) I will try to jump in with some live tweets at @legallysocial.  Also check out the hashtag #pmalaw11.  This is the key conference covering issues of promotion law, sweepstakes, contests and other marketing practices (online and offline).   Privacy, virtual currency, geolocation, coupons, sweepstakes, gaming — you name it.  So stay tuned!


California: Making Social Media Policy For America

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Apparently, while I was spending several months in a courtroom and away from this blog (although not from Twitter!) the state of California officially became ambivalent about social media and the Internet Age more generally.   Of course, as is usually the case, California’s discomfort may create rules for the rest of us.

Allow me to explain.

This next paragraph represents a completely simplistic and borderline inaccurate description of our government, but is important to understand why California has such an out-sized impact in our country: In the United States, we like to think of ourselves as having a federalist system: the individual states make most of the rules unless there’s a law or regulatory scheme at the Federal level.  But implicit in all of this is that the laws of one state don’t have much of an impact on the laws of another state — that’s why, for example, states can’t collect the sales tax spent on companies with no presence in their borders, permitting Amazon and Zappos to thrive and local merchants to seethe with anger.

But some states are more important than others.  It doesn’t behoove companies to have 50 different approaches to their customers, so they often craft their policies to fit the states with the most customers, or the most significant risks.  Thus, a single state can often impact how the rest of us interact with our consumer experience.

California is often that state.  And now, in two separate bills, California’s legislature is trying to get out in front of the national debate on Internet privacy by creating rules that will, in all likelihood (and for better or worse) affect us all.

The first bill, SB242, would force social networking sites to let users set their privacy settings when they register, rather than after they’ve already joined (and often never will).  The bill would also force those same sites to default to certain privacy settings to keep more information private.   Of course, the social media sites are opposed, saying that all of this limits consumer choice, but the legislators who introduced the bill are not impressed, and a $10,000 fine per violation could easily add up to real money for even the largest sites.

The other bill, SB761, would create the “do not track” rules that privacy advocates have hoped for on the Federal level for some time.  The bill, which is far reaching in its scope, would effectively prevent websites from tracking their users.

At all.

In other words, you can effectively opt out of any of the benefits that companies get from interacting with you, even as you interact with them.  This goes quite a bit further than, say, Jay Rockefeller’s proposal in the U.S. Senate introduced this week, a bill that does include exceptions that industry believes to be necessary for modern e-commerce.

Now will these California proposals become law? Probably not in their current forms, but in this atmosphere of paranoia about Internet privacy it is not at all a bad bet that something will pass.  And if it does, social media sites (and, in fact, almost everyone who does business on the ‘net) will have to decide how far they can go in carving out California customers for special treatment, and whether they will simply have to give America the rules that California has chosen.


Virtual Worlds, Real Problems

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One of the more intriguing elements of the social media revolution has to be the growth of “virtual communities” — simulated environments where people “live” and interact with others.  Some of these worlds are developed in the context of gaming (such as World of Warcraft) while others (like Second Life) simply seek to replicate physical interaction through animation.

Of course, like any other community — virtual or otherwise — quite rapidly people conclude that they need, in George Carlin’s immortal phrasing,  “stuff.”  In virtual worlds, of course, you need to purchase virtual products.  And this is where things get interesting. 

Last year, Americans (and yes, this figure only deals with purchases by Americans) spent $1.6 billion in fake stuff virtual goods.  Think about that for a moment.  They spent real money on things that have no real existence except as viewed on a computer screen.  And that ‘s with the limited technology of today — can you imagine how much money will be spent when we can jack our consciousness into a physical space and live inside our avatars?

In any event, the issues that suddenly begin to arise are both fascinating and bizarre.  If you take something from someone else in a virtual world, is it theft?  How can you control your brands in a virtual world?  If you create an “outfit” for yourself in a virtual world that incorporates what would be the proprietary rights of a third party were it done in the “real” world, is that still actionable?  Who actually even owns the content created by members of virtual communities?

There are already lawsuits arising out of these type of concerns.   In Pennsylvania, a class action was filed against Second Life alleging that the ownership rights promised by Second Life’s operator, Linden Research Inc., were undermined by unilateral changes in the terms of service.  This follows another case that held elements of the terms of service to be a contract of adhesion, and thus unenforceable.  The rights of “property” owners within these virtual worlds may be stronger than the creators of those worlds ever imagined.

And even social media games used on traditional platforms are beginning to feel for the limits of the envelope.  Zynga, the folks behind Facebook’s well-known Farmville game, sued Playerauctions.com earlier this year, alleging unauthorized sale of virtual currency and virtual goods without the permission of Zynga.  Courts will soon have to rule on who, really, is in control in these worlds, and what property really means when it is constructed out of bits and bytes (is it any different than property constructed out of carbon, after all?)

These may seem like esoteric questions, but there is little doubt that the world of social media will gradually move towards the creation of ever more sophisticated simulated worlds, and that means that these problems will eventually be your problems.  So think about whether your “communities’ are moving in that direction, and whether the terms of service you are using (or are subject to) address the realities of modern virtual commerce.


Social Media Security: Firesheep and other scary new developments

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As always, there have been a variety of new stories swirling around social media and its discontents over the past week.  This week, the big stories have been all about security:

  1. Firesheep: A software developer created a Firefox extension that allows users to easily abscond with cookie information over Wi-Fi networks.  The creator claims that his invention is harmless.  Others argue that it violates wiretapping statutes.  Everyone agrees that it is a dramatic development, especially because half a million people downloaded it in the first week.  Perhaps that open Wi-Fi network doesn’t look so appealing anymore…
  2. A report circulatedthat Twitter, Facebook and others in the industry are not doing enough to combat security threats like, um, Firesheep.
  3. Sensing a theme, another developer announced “Idiocy” designed to hijack the computers of “unsafe” Twitter users and tell them that they’re…well…idiots.
  4. Random journalists and bloggers are now hijacking accounts, just to show that they can.  Now that waterboarding yourself has become passe, journalists have been forced to actually become tech savvy, apparently.  I will predict that we can look forward to Katie Couric using Firesheep to look at the Facebook account of Glenn Beck sometime during sweeps week.

So what does all of this mean?  It means that users of social media and — quite frankly — any non-encrypted website through public Wi-Fi networks need to strongly consider either using VPNs (virtual private networks) or encrypted connection programs like HTTPS Everywhere

This should hardly be a surprise, of course.  The earliest cyberspace sagas (like Neuromancer) were focused on hackers breaking into secured computer networks.  At this point, the hacker is a cultural archetype.  Now that everyone is on a computer network (social media has sped the trend to an almost surreal extent), it only makes sense that these efforts would be further democratized.  Now everyone can be a hacker.

This is not one of those stories that has a simple, happy ending.  Everyone needs to be aware, and everyone needs to be cognizant of the risks.  The sophistication of security measures increases no faster than the sophistication of folks who want to look at or steal your information.  As Prof. Moody would tell us, “constant vigilance” is the only recommended course of action — for all of us.


When Worlds Collide: Mixing Friends and Business

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In the famous Seinfeld episode The Pool Guy, George Costanza panics when confronted with the prospect of one group of friends meeting his girlfriend, Susan.  He has successfully kept his relationships in independent silos, you see, and he has no idea how (or whether) they will mix together.   Hilarity, of course, ensues — his “worlds collide!” as he so aptly puts it — but in your own life, hilarity may not exactly be the result when different aspects of your life are suddenly placed in uncomfortable proximity with each other.

With the rise of social media, each one of us has a choice: either engage in strict social media hygiene (using one social media platform for friends, another for business) or be prepared for work colleagues to know everything about your penchant for extreme knitting and Powerman 5000.

This is not necessarily a good or a bad thing — and whether it is a positive or a negative in your own life may depend on a whole host of factors, including the type of job you have, the age of your friends and colleagues, and the type of extracurricular activities you engage in.  It is striking how — when speaking with young professionals in their early 20s — they cannot even imagine a world where work and social existence are separate.  They’ve never been adults in a world where you didn’t know what your friends and colleagues were up to.  The sheer quantity of texting, messaging, status updates and tweets in their lives is daunting, and they see no reason to place artificial limits on it.  Conversely, older professionals (even those who are tech savvy and quite comfortable with social media) are appalled at the notion that these worlds may ever overlap.

This generational difference in the ways of social media is likely to grow even more extreme in the years to come, as ever more social media intensive kids grow into adults with communication habits wildly divergent from what we’ve seen before.   Obviously, this represents an opportunity, but it also represents a danger — both for the companies involved, and the individuals who may be breaching trusts and duties without a second thought.

Thus, we should all consider how we engage with social media today — and not merely in the abstract, but in practice.  Who do we “friend,” and what type of person really reads our status updates.  Why are we saying what we’re saying, and do we really need to say it?  These can be uncomfortable questions, but they must be asked if we are to remain calm when worlds collide.


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